HKSAR v. BONG HOI THONG

HCMA397/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 397 OF 2008

(ON APPEAL FROM KCCC 1064 OF 2008)

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J U D G M E N T

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1. The appellant, Bong Hoi Thong was, on 9 January 2008, convicted after trial before Mr H.A. Mierczak, Magistrate, of fighting in a public place, contrary to section 25 of the Public Order Ordinance, Cap. 245, Laws of Hong Kong.   Upon being convicted, she was ordered to be bound over in the sum of $2,000 for a period of two years to be of good behaviour and to pay $1,000 costs.  This is her appeal against that conviction.

2. In the course of the trial she was represented by counsel assigned by the Duty Lawyer Scheme.  Today before me, she is unrepresented.  In the course of the trial interpretation from English to Indonesian was provided.  That being one of the languages the appellant speaks.  In the proceedings before me translation was from Cantonese to English, another language which she can speak.  She has confirmed today that she is comfortable in the use of a Cantonese interpreter and has understood the whole of the proceedings. 

3. The appellant was originally jointly charged with another named Wong Kwai Ping with the offence of fighting in a public place.  Wong Kwai Ping, however, agreed prior to the trial to be bound over in the sum of $3,000 to be of good behaviour.  In consequence, the prosecution offered no evidence against her and she gave evidence in the prosecution case against the appellant.

4. The events which gave rise to the charge against the appellant centre around a dispute which arose out of the distribution of promotion leaflets for two competing foot massage establishments in Tsimshatsui.  The appellant and Wong Kwai Ping (who I will refer to as PW1) were employed by foot massage establishments in the same building.  On 9 January 2008, they were both distributing leaflets for their respective employers near the junction of Nathan Road and Haiphong Road.  PW1 was accompanied by another, a male.

5. A dispute arose and a fight ensued.  PW2, a police officer arrived on the scene and separated the appellant and PW1.  It transpired that both had suffered minor injures.  He had noticed that the person who accompanied PW1 was present at the time but appeared not to be involved in the dispute beyond attempting to separate PW1 and the appellant. 

6. Essentially the prosecution case was that the appellant had initiated the dispute between her and PW1 and it was the appellant who struck the first blow.  It was the appellant’s case as put in cross-examination of PW1 (and rejected by her) and as given in evidence that it was PW1 together with her male companion who first struck the appellant.

7. It was the appellant’s case that there had been a dispute which had been caused by PW1 effectively attempting to approach one of her customers.  It was PW1 who scolded her.  It was the appellant’s case as put in cross-examination and given in evidence that PW1’s male companion held both her arms thereby enabling PW1 to strike her on the face.  As I have said, PW2, a police officer arrived on the scene at the time when PW1 and the appellant were seen to be struggling. 

8. The magistrate had the advantage of hearing the evidence of PW1, PW2 and the appellant and also seeing the witnesses in the witness box.  He concluded, having heard the evidence, that in fact it was the appellant who was the initial aggressor.  He accepted the evidence of PW1 to this effect and he rejected the evidence of the appellant.  The evidence of the police officer, PW2, as I have said was neutral on this aspect. 

9. Today before me, the appellant has told me something of her family background.  She is a single mother raising her children aged 14 and 11.  She is currently unemployed.  She tells me that the conviction recorded against her fighting in a public place, would make it very difficult for her to obtain employment in the future.  In the course of her submissions to me she rehearsed the events of 9 January 2008 as told by her to the magistrate.  She was at pains to emphasis as her counsel had done in the trial that it was PW1 aided by her colleague who had initiated the fight that day. 

10. She pointed out to me that on the day in question, she was taking customers to her employer’s premises when PW1, contrary to the accepted convention in the trade, attempted to hand leaflets to them on behalf of a rival company.  It was, she said, the argument with PW1 that led to PW1’s first scolding her and then striking her.  The magistrate, she said, was wrong to accept the evidence of PW1 and to reject her evidence. 

11. These matters were ventilated before the magistrate.  The transcripts of the evidence of PW1 and the appellant are included in the appeal bundle before me.  I have considered those transcripts carefully as I have also considered carefully the magistrate’s reasons for accepting the evidence of PW1 and rejecting the evidence of the appellant.

12. On the basis of the material before me the conclusion which was reached by the magistrate in the circumstances was one that was clearly open to him.  There is nothing in the reasons for verdict or indeed any matters that have been raised by the appellant this morning that gives me any cause for concern about the integrity of the conviction in this matter.

13. In those circumstances, the appeal against conviction must be dismissed.